Skip to content

Narrow screen resolution Wide screen resolution Auto adjust screen size Increase font size Decrease font size Default font size default color brick color green color
RULED NOT OPPRESSION : Strata's QUICKY bylaw change pre-empted POT FARM - Kunzler v SP EPS 1433 2020/05/18 18:26  
Again NOT legal advice.

Will this be THE dispute that eventually joins a tiny group of previous condo or Building Scheme litigations with enough national import to be accepted for hearing by Canada's Supreme Court ?

That's if it gets that far, of course.

After lots of time, effort & bucks went into multi-jurisdictional approvals for SKYWATER CANNABIS, the owners of a newly declared bare land strata unit on SALT SPRING ISLAND B.C. faced an uprising of other strata owners.

There was a non-mellow quick proposal to expressly amend the strata's allowable land uses - which had included agriculture without restrictions on the range of substantially-sized units - to now pre-emptively prohibit pot farms. That's : NO GRAND-FATHERING either.

An Owners Meeting was called for strata by-law amendment to now prohibit what no one disputed had been a legal land use : a licensed pot farm as already far along the approvals route.

The Strata Owners Meeting served up some some controversial containment of the pot venturers' counsel.

With massive investment already into a Declaration-approved land use, the pot farm venturers at centre stage were limited ( by the Meeting Chair ) to FIVE MINUTES addressing the Owners ie their business venture's neck's on the line but for no more than the same five minute limit allowed to any strata unit.

Recording at the Meeting was prohibited.

The pot-farmers' counsel's note-taking para-legal assistant was ejected. ( yes, yes, happens all the time in Texas . . . )

And so up in smoke - at least for now - went the planned pot venture, pre-emptively to become un-lawful under the Declaration's list of lawful land uses.

B.C. Supreme Court has just rejected the pot farmers' claim that the by-law change was a "Significant Unfairness" under B.C.'s strata law. ( Strata Property Act, SBC 1998, c 43 - Part 10 — Legal Proceedings and Dispute Resolution / Division 1 — Suits Against the Strata Corporation Preventing or remedying unfair acts - section 164 )

It also refused to grand-father the proposed land use under B.C.'s strata law, which expressly legislates to require such when by-lawing to restrict existing pets or existing human age groups. ( Strata Property Act, SBC 1998, c 43 . . . Limits to pet and age bylaws 123 (1) )

Lots of time & bucks already in this project. Will it be appealed & how far ?

Will this litigation even eventually join the tiny group that includes pre-WW1's Pearson v Adams ( 'what's a detached dwelling house in Parkdale ?' ); Beach O'Pines ( 'White gentiles only' ), Winnipeg C.C. # 36 v BIRD Const 1995 ( deficiency claims without privity ); and Syndicat Northcrest v Anselem (2004) ( how sincere are balcony succahs as a religious exemption from balcony rules ?). There's also an obscure Building Scheme referral to the Judicial Committee of the Privy Council. ( Holditch v CNO Railway 1916 ).

Today it's claimed that more than 92 % of S.C.C. applications get outright refused at the gate. But is there enough at stake to take this quicky pre-emption a long way ?

Kunzler v The Owners, Strata Plan EPS 1433, 2020 BCSC 576 issued April 16/20
  The administrator has disabled public write access.
Upheld - BC Court of Appeal. Canada's TOPCOURT next ? ( QUICKY bylaw change pre-empts POT FARM) 2021/06/19 18:15  
Not legal advice, as usual.

British Columbia's Court of Appeal has upheld the disputed pre-emptive strata by-law despite some arguably controversial jockeying to get it past a Strata Council Hearing & unleash other owners while potfarming was still a lawful use.

Given the would-have-been potfarmers' BUCKS already spent & quicky upfront by-law “circling of wagons” & arguable abridgement of submissions to other Strata Owners, will the unsuccessful appellants try to take it to the final appeal level ? That's Canada's Supreme Court.

They would have to try to beat the 92 % + / - failure rate widely believed to even get an appeal heard by Canada’s topcourt.

Is there enough "national import" for Canada's topcourt to consider "Oppression" & due process complaints such as in U.S. disputes ?

P.S. Still un-cited :

a ‘SKYWATER ( MEDICAL ) CANNABIS” farm would have consumed lotsa water. Arguably arguably could taint the brand reputation of other ( "Skywater" development ) strata businesses at Salt Spring Island.

Is cannabis agribiz really the most "sympathetic" appellant to be seeking an clarification about condo / strata / Building Scheme oppression ?

Kunzler v. The Owners, Strata Plan EPS 1433, 2021 BCCA 173 issued April 29/21
  The administrator has disabled public write access.
WHETHER SNOOKERED ? ( ? suckered to defer HEARING while bylaw change secretly in the works ? ) 2021/06/20 17:02  
( ? whether fooled Kunzler & lawyer into postponing Strata Board Hearing at which time there would have been NO BY-LAW PROHIBITION IN PLACE ? )

from BCCA 2021 :

“ . . . [54] On June 18, 2019, the strata council’s lawyer and Mr. Kunzler’s lawyer agreed to postpone the section 34.1 hearing until July 17, 2019.

Mr. Kunzler agreed to this in ignorance of the request for the SGM.
( "Special General Meeting" )

[55] On June 23, 2019, the strata council distributed a notice to all owners that an SGM would be held on July 14, 2019, to discuss and vote on the bylaw amendments proposed in the petition.

[56] The SGM proceeded on July 14, 2019. Mr. Kunzler was not present, as he was uncomfortable with attending the meeting in person.

He appointed his lawyer as his proxy, and his lawyer attended to make a presentation on Mr. Kunzler’s behalf, accompanied by an articled student.

The articled student was not allowed to remain during the meeting,

and Mr. Kunzler’s lawyer was limited to speaking for five minutes, the amount of time allotted to each owner.

The owners voted, and, by the requisite 75% majority, passed the proposed amendments as presented.

[57] Subject to Mr. Kunzler obtaining relief under sections 164 or 121 of the SPA, this effectively ended his plan to establish a licensed cannabis production business at Skywater.. . . ."

from the lower court 2020 :

“ . . . .[24] On May 31, 2019 counsel for Skywater and Mr. Kunzler also wrote to the Strata Council and formally requested a hearing under s. 34.1 of the SPA to discuss Mr. Kunzler’s proposal.

[25] On June 5, 2019, Mr. Kunzler and Skywater received zoning approval from Salt Spring Building Inspection and the Salt Spring Island Local Trust Committee. The next day, on June 6, 2019, the CRD provided Mr. Kunzler and Skywater with zoning approval for the Cannabis Business to operate on the Property.

[26] On June 17, 2019 the Strata Council received a petition signed by several strata owners demanding a Special General Meeting (“SGM”) be held to vote on making certain bylaw amendments which would, inter alia, prohibit commercial cannabis production (the “SGM Petition”). Section 43(3) of the SPA required that the Strata Corporation hold the meeting within four weeks after the demand was given to the Strata Corporation.

[27] On June 18, 2019 the Strata Corporation’s counsel responded to the May 31, 2019 letter and requested Mr. Kunzler put his request for a s. 34.1 hearing in abeyance until mid-July 2019 to provide time for the Strata Corporation’s counsel to review the issues.

Mr. Kunzler agreed to set a date for the hearing of July 17, 2019.

[28] Immediately after that, on June 23, 2019, the Strata Council sent a notice to all strata owners that an SGM would be held on July 14, 2019 to discuss and vote on the bylaw amendments proposed in the SGM Petition....”
  The administrator has disabled public write access.
contact webmaster